New York State Court of Claims

New York State Court of Claims

TOLBERT v. THE STATE OF NEW YORK , #2005-030-005, Claim No. 105584


Case Information

Claimant short name:
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Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
March 21, 2005
White Plains

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See also (multicaptioned case)

Demeris Tolbert, the Claimant herein, alleges in Claim Number 105584 that he was assaulted and battered by a correction officer while he was an inmate at Green Haven Correctional Facility (hereafter Green Haven) on June 10, 2001. Trial of the matter was held at Sing Sing Correctional Facility on February 25, 2005.

As an initial matter, Claimant indicated that all of his court papers did not arrive with him at Sing Sing, and he was concerned that the medical record specifically had not arrived for him to use in evidence. The Assistant Attorney General furnished the Court with a complete copy of the Claimant's Ambulatory Health Record (hereafter AHR), which was admitted in evidence as Claimant's Exhibit 1. On consent, and other than two out-of-court statements marked for identification but not admitted in evidence, the Claimant indicated that these were all the documents he wanted to present.

Claimant testified that he arrived at Green Haven in June, 2001 and was placed in the Special Housing Unit (hereafter SHU). A few days after he arrived, he was escorted by CO Beers and an unknown correction officer to a disciplinary hearing. On the way there, CO Beers asked him about the reasons for his incarceration, and Claimant understood from the conversation that the correction officer knew of Claimant. After the disciplinary hearing Claimant returned to his cell where he remained "locked in."[1]
When a few days had passed locked in his cell, Claimant said he "began to be treated badly." He would be denied access to the shower, or denied food and recreation, until on June 10, 2001 his cell was opened up one morning, he was told to lie on the floor. Correction Officer Beers came in with two other officers - Stevens and Turner - and put his foot on Claimant's neck holding Claimant down. Claimant was hit twice in the groin as he lay prone by one of the two other officers, while Correction Officer Beers "called . . . [him] names," saying "you like to shoot police officers and things of that nature." Claimant remarked that since he had been in the system, he had been harassed frequently because of the "nature of the crime for which . . . [he] was incarcerated . . . it involved a police officer." Beers kept his foot on Claimant's neck for "awhile," then searched his cell, ultimately closing the cell door. Claimant asked for a sick call to see the nurse, and he was ignored by Turner. He also was ignored by the sergeants who walked by during the sick call time of "7 to 3." The next day, he put down for sick call, and the doctor came to his cell. Claimant told him what happened and asked the doctor if there were any injury reports or any tickets written. The doctor indicated he would look into it. The following day he was seen by another doctor, who diagnosed a bruise, and sprained neck, and prescribed pain medication and physical therapy. He was in physical therapy for 6 months.
A few days after the incident of June 10, 2001, he "received a ticket from Officer Beers, saying he had a mattress that was torn up," for which they charged him a fee, and they also "wrote up that he had tobacco in his cell." Because he complained, he said, he was moved within SHU elsewhere.

Claimant said he filed a grievance with regard to the alleged assault by the correction officers, but did not sustain his burden of proof in establishing same. Additionally, he said that he "asked for an investigation by the Attorney General's Office" - but he was told that it would be "his word against yours."

On cross-examination, Claimant conceded that he was arrested for murder - at the time of the arrest he wounded another officer - he would not concede that the wounded officer was shot in the head as asked by the Assistant Attorney General, but rather said "they wrote down a mistake, he was shot in the hand." Claimant received a 75-year sentence. Claimant acknowledged that shortly after he came into DOCS custody at Downstate Correctional Facility - specifically on May 29, 2001 - he assaulted a fellow inmate with a weapon. It was on this charge that he was attending a disciplinary hearing at Sing Sing. He agreed that after the disciplinary hearing on June 2, 2001 he was sentenced to 24 months keeplock on SHU. He saw a doctor on June 11, 2001, as noted on Exhibit B. Claimant also identified Exhibit A as a printout of his disciplinary history with the State of New York. He specifically recognized the assault incident of May 29, 2001 and the June 2, 2001 hearing date thereon.

The notation on the AHR for June 11, 2001 indicates complaints of pain in neck for "3 days." [Exhibit B]. He did not retract that the complained-of behavior occurred on June 10, 2001, and argued that this medical record confirmed the injury.

Correction Officer James Beers - currently a 4½- year employee of DOCS - testified as well. He indicated that on June 10, 2001 he was employed as a correction officer at Green Haven and was assigned to H-1, generally escorting inmates to meals and taking them off recreation. The witness did not recall Claimant Tolbert generally, nor did he specifically recall any incident with Claimant on June 10, 2001.

On cross-examination Officer Beers said he did not recall escorting Claimant to a disciplinary hearing, nor could he recall "without actually seeing the logbook for that day," whether Officers Stevens and Turner were working with him. Officer Beers indicated that in order to go into an inmate's cell at SHU you would generally need a sergeant present to open up for you unless "there was an emergency or you had a cell search warrant." He averred that every time he was in Claimant's cell - if he was in Claimant's cell - a sergeant was present. Correction Officer Beers appeared to have some limited recall that a mattress was confiscated and a ticket written with respect to its destruction, but denied having ever used force upon Claimant. He did not seem to know whether he'd ever used force upon an inmate other than Claimant, but indicated that it was "possible." When asked, Correction Officer Beers said that if he had used force against any inmate, he would have completed the appropriate use-of-force forms as required. He "didn't believe" that there had ever been a grievance filed against him with regard to an assault on an inmate.

On re-direct, he affirmed that he did not recall seeing any other officer touch Claimant in an offensive manner.

Use of physical force against an inmate is governed by statute, regulation, and the attendant case law. The statute provides in pertinent part ". . . [W]hen any inmate . . . shall offer violence to any person, . . . or resist or disobey any lawful direction, the officers and employees shall use all suitable means to defend themselves, to maintain order, to enforce observation of discipline,[and] to secure the persons of the offenders . . . " Correction Law §137(5). As set forth at 7 NYCRR § 251-1.2 (a), an officer must use ". . . [t]he greatest caution and conservative judgment . . . in determining . . . whether physical force is necessary; and . . . the degree of such force that is necessary." Once an officer determines that physical force must be used, ". . . only such degree of force as is reasonably required shall be used." 7 NYCRR § 251-1.2(b). The State may be liable for the use of excessive force by its employee under the concept of respondeat superior.
See Jones v State of New York, 33 NY2d 275, 279 (1973); Court of Claims Act §8.
To assess whether force was necessary, or whether the particular degree of force used was reasonable, ". . . a Court must examine the particular factual background and the circumstances confronting the officers or guards (
see e.g. Lewis v State of New York, 223 AD2d 800; Quillen v State of New York, 191 AD2d 31; Brown v State of New York, 24 Misc 2d 358). Often the credibility of witnesses will be a critical factor in these determinations (Davis v State of New York, 203 AD2d 234;. . . citation omitted)." Kosinski v State of New York, Claim No 97581 (November 30, 2000, Sise, J.).
Before turning to any question of the degree of force, however, resolution of this claim rests upon the relative credibility of the Claimant and Correction Officer Beers, and the evidence Claimant presented to substantiate his claim. It is Claimant who has the burden of proof, and while it troubles the Court that the correction officer had a somewhat selective memory, it is equally troubling that Claimant's version of events suffered from internal inconsistency. On balance, the Court cannot credit the Claimant's testimony, and thus based upon a preponderance of the credible evidence, the claimant has failed to establish that he was assaulted by anybody. Resolving issues of credibility is the province of this Court as the trier of fact.
LeGrand v State of New York, 195 AD2d 784 (3d Dept. 1993), lv denied, 82 NY2d 663 (1993).
Here, the Claimant did not establish that any force was used. No use-of-force report appears to have been filed. [
See 7 NYCRR § 251-1.3]. There was no evidence, other than the self-serving testimony of the Claimant, that any force was used by correction officers. C.O. Beers credibly testified as best as he could recall to events occurring four (4) years before the date of trial. While the Claimant's AHR for the days surrounding June 10, 2001 [See Exhibits 1 and B] was admitted in evidence and does appear to reflect the fact that Claimant suffered some type of neck pain, it does not show a correlation between the alleged assaultive conduct and Claimant's physical state - indeed the notations are inconsistent with the timing of the incident - thus no objective information has been presented to the Court to support the claim.
Accordingly, Claimant has failed to establish by a preponderance of the credible evidence that he was assaulted by correction officers.

Claim numbers 105584 is hereby dismissed in its entirety.

Let judgment be entered accordingly.

March 21, 2005
White Plains, New York

Judge of the Court of Claims

[1] All quotations are to trial notes or audiotapes unless otherwise indicated.